Citation Nr: 0413982
Decision Date: 05/28/04 Archive Date: 06/02/04
DOCKET NO. 00-21 601 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to compensation under 38 U.S.C. § 1151 for a
right ankle disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Bradley Cook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
February 1963 to November 1965. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from a May 2001
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in Fort Harrison, Montana.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), codified at 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107. Regulations
implementing the VCAA are published at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in the instant
case. The United States Court of Appeals for Veterans Claims
(Court) has provided guidance regarding notice requirements
under the VCAA.
The Accredited Representative contends that the veteran has
not been provided adequate VCAA notice. Specifically,
(Although a January 2003 Statement of the Case appears to
have adequately summarized the posture of the veteran's
claim, advising him that the evidence showed neither
additional disability, nor fault on VA's part; and, by
inference that that was the evidence he needed to submit.) in
a February 2004 statement, the Representative asserts that
the veteran was not properly notified of the types of
evidence he should submit in order to substantiate his claim,
of the evidence to be obtained by VA, and of the evidence he
must secure and submit himself. Upon close review of the
claims file, the Board notes that, while the veteran has been
provided some letter notice, the VCAA notice provided related
specifically to claims for service connection, and did not
include information relative to claims for compensation under
38 U.S.C.A. § 1151.
Accordingly, this case is REMANDED to the RO for the
following:
1. The RO must ensure that all VCAA
notice requirements are met, in
accordance with the statutory
provisions, implementing regulations,
and all interpretative authority,
including precedent Court decision
guidelines. In particular, the RO
should ensure that the veteran is
advised of what he needs to establish
entitlement to the benefit sought, the
controlling law and regulations, what
the evidence shows, of his and VA's
respective responsibilities in claims
development, and that he should submit
everything he has pertinent to the
claim. Specifically, he should be
informed that to establish entitlement
to compensation under 38 U.S.C.A.
§ 1151, competent (medical) evidence
must demonstrate that VA hospital care,
medical or surgical treatment, or
examination resulted in an additional
disability, and that the proximate cause
of the additional disability involved VA
fault or an unforeseen event. He should
have the opportunity to respond.
2. The RO should obtain complete copies
of any private or VA reports (those not
already associated with the claims file)
of medical treatment or examinations the
veteran received for his right ankle
since June, 1999. He should assist in
this matter by identifying the sources of
treatment and examinations, and providing
any necessary releases.
3. The RO should then review the record
and arrange for any further development
suggested by the results of the
development requested above, including,
but not limited to, medical examination
or medical advisory opinion, as
indicated. The claim should then be re-
adjudicated. If it remains denied, the
RO should issue an appropriate
Supplemental Statement of the Case and
provide the veteran and his
representative the opportunity to
respond. The case should then be
returned to the Board for further
appellate review, if otherwise in order.
The purposes of this remand are to provide adequate notice
and to compile all evidence necessary to decide this claim.
No action is required of the appellant unless he is notified.
He has the right to submit additional evidence and argument
on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment by the RO. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).